Wood Stork (Mycteria americana)
Wood Stork (Mycteria americana)

Last week’s announcement by the U.S. Fish and Wildlife Service—that it would consider reclassifying the wood stork, a wading bird often found in South Florida’s Everglades, as “threatened” from its current “endangered” status—is the culmination of nearly five years of wrangling and lawsuits that have pitted the government against an aggressive law firm and the state’s home builders. The Service has a year to render its decision. And while species protection is the same for animals and plants that are designated threatened or endangered, the reclassification could prove to be a step towards delisting the wood stork from the Service’s list altogether.

“By the looks of the stork’s recovery, that could happen, although it might take another five-year review,” says Steve Godley, a senior vice president with Entrix, a natural resource management and environmental consultant that has been working with the Florida HBA in its efforts to open more land to development that has been protected as habitats for the storks.

The U.S. Fish and Wildlife Service, which is part of the Interior Department, uses five factors to determine whether a species should be listed as threatened or endangered, explains Al Pfister, a wildlife biologist with the Service’s Colorado office: The species’ habitat is in danger of future destruction, the species is being overutilized for scientific or commercial purposes, it is being harmed by diseases or predation, the regulations protecting it are found to be inadequate, or its habitat is in danger of being wiped out by “stochastic” events such as a hurricane, fire, or earthquake.

Godley says the wood stork’s population began to seriously recede in the 1960s and 1970s, when the Army Corps of Engineers “redid the plumbing” in Florida’s Everglades, the bird’s natural habitat and hunting grounds in the fall and winter months. The Corps redirected water currents to reduce flooding caused by hurricanes. Those changes, though, affected the birds’ reproductive cycle.

In more recent years, the storks seem to have made a remarkable comeback, mostly by migrating to nesting habitats as far north as North Carolina. There are now between 50 and 70 identifiable wood stork colonies in several Southeastern states, says Godley.

What caused the wood stork to recover is not exactly clear. “I don’t think anyone fully understands the answer to that,” admits Godley, who is a biologist. But when asked if more development might inevitably lead to a reduction in the number of stork pairs, Godley answered that developers and builders are now required to mitigate or replace disrupted habitats, and that the Service has issued a wood stork consultation key for mitigation. 

Getting a species reclassified or delisted is no simple matter. The Service’s website shows that only 20 species have been delisted. In contrast, there are now 576 animals and 795 plants that are listed as endangered or threatened.

The Service is required by statute to review its lists every five years. But it had been lax in that effort until 2006, when the Pacific Legal Foundation filed a lawsuit to get the Service to conduct reviews of over 100 species. “We had to bring the government kicking and screaming to do this,” says Reed Hopper, principal attorney for the Sacramento, Calif.-based law firm.

The Service did a biological review of the wood stork’s endangered status in 2007 to determine if the birds were entitled to more or less protection. The Service then issued a recovery plan, in anticipation that the species would be reclassified as “threatened” if it reached 6,000 breeding pairs within a three-year period. But even as the birds hit 10,000 pairs, Hopper says his firm had to file a formal petition last year, on behalf of the Florida HBA, “to get the Service to act on its own findings.”

Environmentalists suspect that builders and developers are using this controversy to deflect attention from larger problems that continue to plague the housing and mortgage industries. Hopper counters that reclassification or delisting would remove one more legal weapon that he says anti-growth advocates have used successfully in the past to block development.

He also thinks the Endangered Species Act in general needs to be overhauled. “It’s broken and has been ineffective in meeting its goal” to develop plans for species recovery to get more of them off delisted.

Hopper—whose firm’s marketing tagline is “Your Legal Watchdog for Freedom”—says the government’s reluctance to alter the way it addresses species protection stems from a 1978 U.S. Supreme Court decision against the Tennessee Valley Authority regarding the tiny snail darter, which established a “protection at any cost” precedent that Hopper says still abides today. The consequence of that ruling, he points out, has been the imposition of greater restrictions on land use, especially when a “critical habitat” on or near that land is designated. Hopper doesn’t think the Service gives enough consideration to the economic impact of its rules and believes the only way to resolve this to the benefit of landowners and developers would be “for Congress to make clear” when protection at any cost is or isn’t tenable.

John Caulfield is a senior editor for BUILDER magazine.

Learn more about markets featured in this article: Miami, FL, Memphis, TN, Orlando, FL.